“There can be no keener revelation of a society’s soul than the way in which it treats its children.” Nelson Mandela.
The Child Labour (Prohibition and Regulation) Act, 1981 (hereinafter referred to as ‘Principal Act’ for brevity sake) was made with the object to protect children from being exploited by means of child labour. But the State bought in The Child Labour (Prohibition and Regulation) Amendment Act, 2016 (hereinafter referred to as ‘Amendment’ for brevity sake). The Schedule of Principal Act had an inexhaustible list of occupations and processes that were labelled as hazardous. But the Amendment has reduced it to only 3 occupations, making it supremely ambiguous. Until 2016, a child was safe from the hazards of being employed, in a place where there is a threat to his future, education, health and basic dignity of life. The Amendment has made sure that this security and assurance is shattered and has destroyed the very essence of the effort to safeguard children from these evils, resulting into child exploitation in the name of family enterprises. Under the garb of legitimate protection, the Amendment will contribute in the development of the racket of child labour. The State has pretentiously attempted to change scenarios towards its children, their childhood and dignity. In effect, it is beneficial to only a small number engaged in certain specific forms of child labour.
Child labour as defined by International Labour Organisation (ILO) refers to the work that deprives children (any person under 18) of their childhood, their potential and their dignity, and that is harmful to physical and/or mental development. It refers to work that is mentally, or morally dangerous or harmful to children; and/or interferes with their schooling by i) depriving them of the opportunity to attend school; ii) obliging them to leave school prematurely; ii) requiring them to attempt to combine school attendance with excessively long and heavy work.
Minimalistic and Restrictive Approach Fatal to the Act:
The main objective of the Principal Act was to create a complete legislation to attain various objectives concerned with child labour. The Principal Act stipulates that the primary objectives are to ban employment of children, to lay down procedures for modification to the Schedule of banned occupations and processes, to lay down a standard definition for the term ‘child’, etc. The Amendment has to be compared to the Principal Act to determine the justifiability of the passing of the Amendment. The Amendment seeks to substitute the objective provided in the Principal Act with a new one. According to S.2 of the Amendment, the new object of the Act shall be to prohibit engagement of children in any occupation and prohibition of engagement of adolescents in hazardous activities. It is evident from the object that the intention of the Legislature is to split the subject matter of the enactment between children and adolescents. The legal impetus behind such division is quite clear. It intends to closely bind the legal fabric to make the statute legally impenetrable. The complex structure is intended to serve as a cornerstone to prevent forceful infliction of labour upon children and adolescents. Provisions stipulated by the Amendment have to be read in consonance with the Object. In the present case, the reasoning behind the Amendment is conspicuous. But it is also important to scrutinize whether such an Object is reinforced by exhaustive, dexterous and self-sustaining provisions.
S.5 of the Amendment prohibits employment of child in any kind of work. Primarily the provision acts in accordance with the Object. The latter part of the provision sets out two exceptions. Whenever a child helps his family or works in a family enterprise (where the nature of work does not constitute it as a hazardous process or occupation), S.5 is not attracted. Moreover, when a child works as an artist in an audio-visual entertainment industry, including advertisement, films, television serials or any such other entertainment or sports activities except the circus, S.5 is not applicable. Considering these exceptions, one would reasonably expect existence of an able legal machinery and also stipulation of provisions in order to protect the children from exploitation under the façade of the exceptions. S.5 substitutes S.3 of the Principal Act with a new one. S.3 of the Amendment while setting out the exceptions, directs the interpreter to refer to the Schedule to construe what may be considered to be a hazardous process or occupation.While construing what can be included under the gamut of the term ‘hazardous occupation’, one would take recourse of the Schedule which legitimately is expected to enumerate its constitution. But the Amendment fails to enlist what actually comprises the term ‘hazardous occupation’. Absence of enumeration of the components of ‘hazardous occupation’ leaves the interpreter to an abrupt end. Resultantly the statute by not defining the said term has left the object of the statute incomplete and unattended. Such a deficiency in the statute vitiates the Object of the Act and questions the existence of the statute.
With respect to the second exception provided under S.5 vis-à-vis S.3(2)(b) of the Amendment, the provision recognizes the enormous danger involved in circus activities and therefore, one cannot take shelter of exceptions enumerated in the said provision and persuade the child to perform any kind of activity in a circus.The intentions however candid enough, fail to be augmented with necessary provisions for its congenial implementation. Nowhere has the statute mentioned the maximum number of hours a child may indulge in any kind of activity excepted by the provision. Therefore a person in order to evade the clutches of the statute may force a child to perform activities excepted by the provision for uncountable hours which would resultantly affect the health of the child. Such unethical and immoral acts by not being explicitly prohibited have been left unscathed, thereby letting the person to evade the otherwise strict statute. Eradication of the abysmal conditions in which labour is inflicted upon the child and the resultant plight is clearly evident from the Amendment. But considering the legislative structure of the Amendment, the crystal clear intent of the legislature becomes opaque for the interpreter. The Amendment needs to be put to test referring to the Principal Act in order to construe its veracity. S.22 of the Amendment substitutes the Schedule of the Principal Act with a new one. The Schedule of the Principal Act categorically provides for components of ‘occupation’ under Part A and components of ‘processes’ under Part B. This exhaustive list can be considered to be competent to conclusively prevent child labour.The new Schedule restricts and minimizes its ambit by only enumerating three components of Child Labour – being mines, inflammable substances or explosives and hazardous process. Interpreter is redirected to refer the definition of ‘hazardous process’ in the Factories Act, 1948. According to S. 2(cb) of the Factories Act, 1948 a hazardous process means any process in relation to any raw materials used in any product or byproduct which would resultantly cause material impairment to the health of the person who is connected therewith. The definition imbibes upon the fact that a particular process may not be considered as a hazardous process if it is carried out with due care and protection. This section has to be read with the Amendment. After arranging the sections in a manner to enable a person to interpret it in consonance with the Object of the Amendment, it is evident that since definition of ‘hazardous process’ has not been defined considering the existential nature of child labour in India it has left a void in the legislation which resultantly has defied the whole object of the Principal Act. Usurping the provisions of the Amendment what may be interpreted is that a person may by taking due care with respect to the safety measures for initiation of a hazardous process undergo it legally considering it to be a non-hazardous process. Moreover, a person may also induce a child to indulge in such an activity which would ultimately vitiate the object.
Present issue has to be scrutinized through International perspective also. India has signed and ratified the Worst Forms of Child Labour Convention, 1999 (C-182). According to Article 3 of the Convention, it is categorically stipulated that worst forms of child labour include all forms of slavery, trafficking, debt bondage, serfdom, etc. According to World Report 2015 on Child Labour by ILO, statistical data of child labour prevalent in India shows that 20.7% of persons between 15 to 17 years of age performing child labour are indulged in hazardous activities. According to ILO Report on Child Labour in India, 10.1 million (3.9% of total child population) children are either working as ‘main workers’ or ‘marginal workers’. In addition, more than 42.7 million children in India are out of school. Instead of enacting strong provisions that are deterrent to this depressing phenomenon, provisions of the Amendment are contributing towards fostering existing inequalities and discriminatory practices in the society. It also contravenes a number of equitable rights of children as guaranteed by the UN Convention on the Rights of Child, 1989 to which India has ratified.
The United Nations Children’s Fund (UNICEF) has severely criticized the Amendment. It has recommended that the exception of “children working for family enterprises” be removed. Also it has recommended for an exhaustive list of hazardous occupations and also to reserve the power to add more occupations under the list.
These pitiable conditions and the resultant need to act in consonance with the International Conventions have also been recognized by the Hon’ble Supreme Court of India in M.C. Mehta (Child Labour matter) v. State of T.N.
“It would be apposite to apprise ourselves also about our commitment to world community. For the case at hand it would be enough to note that India has accepted the Convention on the Rights of the Child, which was concluded by the UN General Assembly on 20-11-1989. This Convention affirms that children’s rights require special protection and it aims, not only to provide such protection, but also to ensure the continuous improvement in the situation of children all over the world, as well as their development and education in conditions of peace and security. Thus, the Convention not only protects the child’s civil and political right, but also extends protection to child’s economic, social, cultural and humanitarian rights.”
When legislations and amendments are enacted, they are well thought, researched and backed by all sorts of technical prospects. The entire object of amending gets defeated when the provisions deny justice to those who they were supposed to give bovine protections to. These Amendments have deterred justice to the most marginalized children of India. Not just the law makers, the opposition too, haven’t performed their duty. Instead of challenging the provisions of the Amendment, they chose to keep mum and witness the massacre of human rights like that of dignity and freedom.
Majority of underprivileged children are engaged in unregulated labour conditions. These conditions compel a child to work before and after school, and in some situations till late in night. All of it makes a child to be treated as a machine. The health of the child is not taken care of and they are so exhausted that they underperform in school, if they happen to attend it. They are then labelled as slow learners, leaving them the choice to either work or study. Unfortunately, most kids are forced to choose bread over pen.
Failing on legal, practical and ethical grounds, the law makers have bamboozled the dream of abrogating or at least regulating child labour effectively.
Sumedh Modak, 5th B.L.S. LLB & Sparsh Khanchandani student of 2nd B.L.S. LLB at Nari Gursahani Law College, Ulhasnagar.
Also Read – Child Prostitution in India
 Article 3, 31 and 32 of UN Convention on the Rights of Child, 1989 https://www.ohchr.org/en/professionalinterest/pages/crc.aspx
(1996) 6 SCC 756 : 1997 SCC (L&S) 49 at page 766